Lawyers Behaving Badly Get A Dressing Down From Civility Cops

Adversarial System Grows Obscenely Nasty; 'Get More Results With Sugar'

A group of attorneys concerned about bad manners in their profession held a musical revue at a downtown Manhattan law firm, complete with doctored song lyrics. WSJ's Jennifer Smith reports.

By

Jennifer Smith

Updated Jan. 27, 2013 10:35 p.m. ET

In New York one night recently, U.S. District Judge Richard Sullivan donned his robes, walked onstage and belted out to his colleagues this heartfelt plea for lawyerly politeness (to the tune of "If I Were a Rich Man"):

"If lawyers were more civil

Daidle deedle daidle daidle daidle deedle daidle dum

They'd treat their breth-er-en with more respect

Wouldn't always yell, 'object.' "

The ditty struck a nerve—and brought down the house, a largely pinstriped crowd of 80 or so lawyers there for a musical refresher course on the virtues of civility.

But it is no laughing matter to those who fret that a tide of rudeness has engulfed the legal profession.

From courtroom yelling matches to insulting letters and depositions that turn into fistfights, some lawyers and judges worry that the adversarial system of justice has gotten a little too adversarial.

To rein in "Rambo" litigators, the politeness patrol is pushing etiquette lessons, and even seeking to have civility included in attorney oaths.

The well-mannered caution that lawyers who shout, lie and shoot off vulgar emails don't merely alienate judges and juries. They also slow the wheels of justice and cost clients money.

"Lawyers already have a bad enough reputation," said Stewart Aaron, a litigator and head of Arnold & Porter LLP's New York office. He performed alongside Judge Sullivan in the revue.

The show—titled "A Civility Seder" and put together by the New York Inn of Court, a legal group that promotes collegiality and ethical behavior—might be the most colorful example of the manners movement. But it pales beside the R-rated antics of the attorneys whose behavior inspired it.

Take, for instance, lawyer Marvin Gerstein of Illinois, who has been disciplined three times for his profane epistolary style, according to the Attorney Registration & Disciplinary Commission of the Illinois Supreme Court.

Over the years, Mr. Gerstein has sent letters to legal adversaries calling them, variously, a "fool," "idiot," "slimeball," and other names unfit for publication. He has also suggested opponents have their heads inserted so far into an unpleasant place that they "think it's a rose garden," language that an expert witness for Mr. Gerstein said served a business purpose by vividly demonstrating the point.

The disciplinary commission rejected that argument, although a dissenting member argued that his conduct was protected by the First Amendment.

"If you cross the line with me, you get both barrels," said an unrepentant Mr. Gerstein. He has since dialed his language back to avoid further sanctions, he said, but "it's none of their business what goes on between two attorneys."

Jaw-droppingly outrageous conduct is rare, even the most ardent defenders of decorum agree. More common are small-bore disputes: lawyers whose sniping, in person and on paper, can spiral out of control.

"When I'm upset, I can feel the testosterone rising, and I can literally feel my judgment declining," said David Casselman, a senior partner at Wasserman, Comden, Casselman, & Esensten LLP in Tarzana, Calif., and a co-chair of the American Board of Trial Advocates' committee on professionalism, ethics and civility. "It's so easy to slide into tit-for-tat mode."

Last month Indiana's Supreme Court chastised lawyers on both sides of a $1.75 million medical negligence lawsuit for making excessive objections and for "the unnecessary sparring and outright contemptuous conduct of each attorney directed toward the other."

"A jury trial is not a free-for-all," Justice Steven H. David wrote.

Whether the problem is worse now is hard to quantify. Professional codes instruct lawyers to be civil, but rudeness isn't tracked or punished as much as more concrete trespasses, such as filching clients' money.

But a number of attorneys and judges say courtly conduct has collapsed over the years, particularly in the more fractious realms of the profession, like divorce proceedings.

Some blame email, and the decline of face-to-face interactions among lawyers in big cities, where sparring attorneys rarely encounter foes at their kids' weekend soccer game.

"You don't do this to people you know," said San Francisco lawyer William B. Smith, also a co-chairman of the trial lawyers' civility committee. "Now it's people sitting behind computers doing nasty things to each other."

Mr. Casselman began collecting examples of bad behavior a few years ago.

He enlisted prominent judges and lawyers for a civility video, and, with Mr. Smith, persuaded the trial lawyers group to develop an entire program on the topic.

Thus far the amiability advocates have made presentations at dozens of law firms, bar groups and law schools. Now they are pushing legal educators to make civility a regular part of the curriculum.

Some lawyers say nastiness and aggression results in smaller settlements or can even lose a case, hitting lawyers where it hurts—their wallets.

ENLARGE

Richard Sullivan

"I tell all the lawyers in my firm, you're not a fighter, you're a lover," said Stephen Susman, a founding partner at litigation boutique Susman Godfrey LLP, which has a tradition of inviting opposing counsel to its holiday party. "You will get more results with sugar than with vinegar."

Still, the bad behavior rolls on.

Last year Meyer Ziman, an Arizona personal-injury lawyer, was suspended from practice for 12 months after he "repeatedly and intentionally committed offensive conduct," in violation of the state's oath of admission to the bar.

In one instance, during phone calls while trying to obtain a client's medical records, Mr. Ziman allegedly showered a hospital employee with expletives, then told another who asked him to watch his mouth, "you are nothing but a slut that works for a copy service."

Mr. Ziman said during disciplinary proceedings that he had used the term "slug," an explanation that Arizona's attorney discipline panel found "implausible" according to its report on the case.

Mr. Ziman, wrote Presiding Disciplinary Judge William J. O'Neil, "brandishes his opinion as a battering ram, intentionally offending people…While in his private life he may be as rude, offensive and demeaning as he chooses, in his professional life he may not hide behind his First Amendment right [in order] to ignore his sworn responsibilities."

Mr. Ziman doesn't feel his conduct warranted a suspension, said his lawyer, Joseph Collins, who said he personally doubts civility codes will do much to burnish lawyers' reputations.

"I think the end goal," Mr. Collins said, "is not going to be achieved by pursuing attorneys who use offensive language."

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